Madhya Pradesh High Court
Gokul Ahirwar (Dead) Thr Lrs Mahila ... vs Mahila Gulab Bai on 16 May, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16 th OF MAY, 2024
SECOND APPEAL No. 1350 of 2021
BETWEEN:-
SMT. ASHA SHRIVASTAVA W/O SHRI BHUVNESHWAR
PRASAD SHRIVASTAVA, AGED ABOUT 45 YEARS,
OCCUPATION: HOUSE WIFE BEHIND JHIRKI BAGIYA
TIKAMGARH TEH. AND DIST. TIKAMGARH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ATULANAND AWASTHY - SENIOR ADVOCATE WITH MS
DEWANGI TAMRAKAR AND SHRI ABHAY TIWARI - ADVOCATES)
AND
1. MAHILA GULABBAI NAPIT W/O LATE SHRI
RAJARAM NAPIT, AGED ABOUT 65 YEARS, BORI
DARWAJA MUHALLA TIKAMGARH TEH. AND
DIST. TIKAMGARH (MADHYA PRADESH)
2. SHIVDAYAL S/O LATE SHRI RAJARAM NAPIT,
AGED ABOUT 39 YEARS, R/O BORI DARWAJA
MUHALLA TIKAMGARH TAH. AND DISTT.
TIKAMGARH (MADHYA PRADESH)
3. SANTOSH S/O LATE SHIR RAJARAM NAPIT, AGED
ABOUT 29 YEARS, R/O BORI DARWAJA MUHALLA
TIKAMGARH TAH. AND DISTT. TIKAMGARH
(MADHYA PRADESH)
4. ANIL S/O LATE SHRI RAJARAM NAPIT, AGED
ABOUT 24 YEARS, R/O BORI DARWAJA MUHALLA
TIKAMGARH TAH. AND DISTT. TIKAMGARH
(MADHYA PRADESH)
5. KIRAN D/O LATE SHRI RAMARAM NAPIT, AGED
ABOUT 34 YEARS, R/O BORI DARWAJA MUHALLA
TIKAMGARH TAH. AND DISTT. TIKAMGARH
(MADHYA PRADESH)
6. SANGEETA S/O LATE SHRI RAJARAM NAPIT,
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 5/17/2024
10:30:50 AM
2
AGED ABOUT 23 YEARS, R/O BORI DARWAJA
MUHALLA TIKAMGARH TAH. AND DISTT.
TIKAMGARH (MADHYA PRADESH)
7. THE STATE OF MADHYA PRADESH THRO. THE
COLLECTOR DISTT. TIKAMGHARH (MADHYA
PRADESH)
8. GOKUL AHIRWAR (DEAD) THRO LRS MAHILA
GAIRIYA W/O LATE SHRI GOKUL AHIRWAR,
AGED ABOUT 70 YEARS, R/O VILLAGE
KUNWARPURA TAH. AND DISTT. TIKAMGARH
(MADHYA PRADESH)
9. HALLU S/O VANSHIYA AHIRWAR, AGED ABOUT 80
YEARS, R/O VILLAGE KUNWARPURA TAH. AND
DISTT. TIKAMGARH (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ASHOK KUMAR JAIN - ADVOCATE FOR RESPONDENTS 2-6 AND
MS. MAMTA MISHRA - PANEL LAWYER FOR RESPONDENT 7/STATE)
SECOND APPEAL No. 1423 of 2021
BETWEEN:-
1. GOKUL AHIRWAR (DEAD) THR LRS MAHILA
GORIYA W/O LATE GOKUL AHIRWAR, AGED
ABOUT 70 YEARS, OCCUPATION: AGRICULTURE
AND HOUSE WIFE, R/O KUBAR PURA TEHSIL AND
DISTRICT TIKAMGARH (MADHYA PRADESH)
2. BABLU S/O LATE GOKUL AHIRWAR, AGED ABOUT
40 YEARS, OCCUPATION: AGRICULTURE R/O
KUBAR PURA TEHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
3. JASODHA D/O LATE GOKUL AHIRWAR, AGED
ABOUT 45 YEARS, OCCUPATION: AGRICULTURE
R/O KUBAR PURA TEHSIL AND DISTT
TIKAMGARH (MADHYA PRADESH)
4. VIMLA D/O LATE GOKUL AHIRWAR, AGED
ABOUT 30 YEARS, OCCUPATION: AGRICULTURE
R/O KUBAR PURA TEHSIL AND DISTT
TIKAMGARH (MADHYA PRADESH)
5. CHATRU S/O LATE GOKUL AHIRWAR, AGED
ABOUT 36 YEARS, OCCUPATION: AGRICULTURE
R/O KUBAR PURA TEHSIL AND DISTT
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 5/17/2024
10:30:50 AM
3
TIKAMGARH (MADHYA PRADESH)
6. SONI AHIRWAR S/O LATE GOKUL AHIRWAR,
AGED ABOUT 38 YEARS, OCCUPATION:
AGRICULTURE R/O KUBAR PURA TEHSIL AND
DISTT TIKAMGARH (MADHYA PRADESH)
7. SHYAM S/O LATE GOKUL AHIRWAR, AGED
ABOUT 40 YEARS, OCCUPATION: AGRICULTURE
R/O KUBAR PURA TEHSIL AND DISTT
TIKAMGARH (MADHYA PRADESH)
8. KALLU (DEAD) THR. LRS
8A JASHODA W/O LATE KALLU, AGED ABOUT 42
Y E A R S , OCCUPATION: AGRICULTURE AND
HOUSE WIFE R/O KUBAR PURA TEHSIL AND
DISTT TIKAMGARH (MADHYA PRADESH)
8B. AMAR S/O LATE KALLU, AGED ABOUT 21 YEARS,
OCCUPATION: AGRICULTURE R/O KUBAR PURA
TEHSIL AND DISTT TIKAMGARH (MADHYA
PRADESH)
9. PARSADI (DEAD) THR. LRS
9A RAJ KUMARI W/O LATE PARSADI, AGED ABOUT
35 YEARS, OCCUPATION: AGRICULTURE R/O
KUBAR PURA TEHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
9B. ANAND S/O LATE PARSADI, AGED ABOUT 16
YEAR S , OCCUPATION: MINOR STUDENT THR.
MOTHER RAJ KUMARI NATURAL GUARDIAN R/O
KUBAR PURA TEHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
9C. ARUN S/O LATE PARSADI, AGED ABOUT 13 YEARS,
OCCUPATION: MINOR STUDENT THR. MOTHER
RAJ KUMARI NATURAL GUARDIAN R/O KUBAR
PURA TEHSIL AND DISTT TIKAMGARH (MADHYA
PRADESH)
10. KAMLESH (DEAD) THR. LRS
10A KAMLA W/O LATE KAMLESH, AGED ABOUT 40
Y E A R S , OCCUPATION: AGRICULTURE AND
HOUSE WIFE R/O KUBAR PURA TEHSIL AND
DISTT TIKAMGARH (MADHYA PRADESH)
10B. SEVA S/O LATE KAMLESH, AGED ABOUT 19
YEARS, OCCUPATION: AGRICULTURE R/O KUBAR
PURA TEHSIL AND DISTT TIKAMGARH (MADHYA
PRADESH)
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 5/17/2024
10:30:50 AM
4
10C. CHHUTU S/O LATE KAMLESH, AGED ABOUT 14
YEAR S , OCCUPATION: MINOR THR. MOTHER
KAMLA NATURAL GUARDIAN R/O KUBAR PURA
TEHSIL AND DISTT TIKAMGARH (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI D.C.MALLIK - ADVOCATE)
AND
1. MAHILA GULAB BAI W/O LATE SHRI RAJARAM
NAPIT, AGED ABOUT 65 YEARS, BORI DARWAJA
MOHALLA TIKAMGARH TEHSIL AND DISTRICT
TIKAMGARH (MADHYA PRADESH)
2. SHIVDAYAL S/O LATE SHRI RAJARAM, AGED
ABOUT 39 YEARS, R/O BORI DARWAJA MOHALLA,
TIKAMGARH TAHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
3. SANTOSH S/O LATE SHRI RAJARAM, AGED
ABOUT 29 YEARS, R/O BORI DARWAJA MOHALLA,
TIKAMGARH TAHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
4. ANIL S/O LATE SHRI RAJARAM, AGED ABOUT 24
Y E A R S , R / O BORI DARWAJA MOHALLA,
TIKAMGARH TAHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
5. KIRAN D/O LATE SHRI RAJARAM, AGED ABOUT
34 YEARS, R / O BORI DARWAJA MOHALLA,
TIKAMGARH TAHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
6. SANGEETA D/O LATE SHRI RAJARAM, AGED
ABOUT 23 YEARS, R/O BORI DARWAJA MOHALLA,
TIKAMGARH TAHSIL AND DISTT TIKAMGARH
(MADHYA PRADESH)
7. STATE OF MADHYA PRADESH THR. COLLECTOR
DISTT-TIKAMGARH (MADHYA PRADESH)
8. SMT. ASHA SHRIVASTAVA W/O BHUPENDRA
PRASAD, AGED ABOUT 45 YEARS, JHIRKI BAGIYA
KE PICHHE TIKAMGARH TAH. TIKAMGARH
(MADHYA PRADESH)
9. HALLU S/O BASHIYA AHIRWAR, AGED ABOUT 80
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 5/17/2024
10:30:50 AM
5
YEAR S, GRAM KUWARPURA TAH. AND DISTT.
TIKAMGARH (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ASHOK KUMAR JAIN - ADVOCATE FOR RESPONDENTS 2-6 AND MS.
MAMTA MISHRA - PANEL LAWYER FOR RESPONDENT 7/STATE)
These appeals coming on for admission this day, the court passed the
following:
ORDER
There being common question involved in both the second appeals (S.A
No.1350/2021 and 1423/2021), the same are being decided by this common
order and for the sake of convenience record of SA No.1423/2021 is taken into
consideration.
2. This second appeal (1423/2021) has been preferred by LRs of original
defendant 2-Gokul Ahirwar challenging judgment and decree dtd.09.09.2021
passed by Fourth District Judge, Tikamgarh in RCA No.46/2019 affirming
judgment and decree dtd.28.02.2019 passed by First Civil Judge Class-II,
Tikamgarh in RCSA No.1500021-A/2015 whereby courts below have decreed
respondents 1-6/plaintiffs' suit for declaration of title and possession and for
declaring the sale deed dtd.08.09.2005 null and void as well as for permanent
injunction filed in respect of land bearing Khasra No.67, 68, 69 total area 1.886
hect. situated in village Kunwarpura, Tahsil and Distt. Tikamgarh, which is in
dispute.
3. Facts in short are that Gokul and Hallu were real brothers, who being
bhumiswami of the aforesaid land executed a registered sale deed
dtd.19.10.1972 (Ex.P-1) in favour of Rajaram Napit and Premlal Napit. Plaintiffs
are legal heirs of Rajaram Napit. It is an undisputed fact on record that the sale
deed dtd. 19.10.1972 has not been declared void/ineffective by any
authority/court and has also not been challenged by Gokul or Hallu. Thereafter
the disputed land was sold by defendant 2-Gokul in favour of defendant 1-Smt.
Asha vide registered sale deed dtd.08.09.2005 (Ex.D/6). As such, the plaintiffs
and defendant 1-Smt. Asha both are claiming rights in the suit property on the
basis of said/two different sale deeds dtd.19.10.1972 and 08.09.2005. In the
present case trial court has decreed the civil suit and held the sale deed
dtd.08.09.2005 to be null and void vide judgment and decree dtd.28.02.2019,
which was challenged by defendants 1,2 and 4 (Smt. Asha, Gokul and Hallu) by
filing civil appeal, which has also been dismissed by the impugned judgment
dtd.09.09.2021. Against which defendant 1-Smt. Asha has preferred SA
No.1350/2021 whereas SA No.1423/2021 has been preferred by LRs of
defendant 2- Gokul.
4. Learned counsel(s) for the appellant(s) in both the appeals submit that
the land in question was granted on patta by the State Government/Bhoodan
Yagna Board to Gokul in the year 1963 and before execution of sale deed
dtd.19.10.1972 Gokul was not given bhumiswami rights over the land in
question, therefore, sale deed dtd.19.10.1972 is a void document, hence treating
it to be a void document, Gokul with the consent of his brother Hallu rightly
executed another sale deed in respect of the disputed land on 08.09.2005 and
handed over possession. Learned counsel(s) submit that as no right was
conferred on the plaintiffs on the basis of sale deed dtd.19.10.1972, therefore,
there was no hurdle in execution of sale deed on 08.09.2005 by defendant 2-
Gokul in favour of defendant 1-Smt. Asha. They further submit that prior to
institution of instant suit, another civil suit was filed for the same relief and was
withdrawn, therefore, the second/instant suit was not maintainable, which being
filed on 19.10.2013 is also hopelessly barred by time from the date of execution
of sale deed dtd.08.09.2005. Learned counsel(s) submit that courts below
without taking into consideration the aforesaid aspects, have committed illegality
in decreeing the suit. With these submissions they pray for admitting the second
appeal(s).
5. In support of their submissions learned counsel(s) placed reliance on a
decision given by a coordinate Bench of this Court in the case of Gopal and
Ors. vs. Mangalia and Ors. (2022) 1 MPLJ 338.
6 . Learned counsel appearing for respondents/plaintiffs supports the
impugned judgment and decree passed by courts below and prays for dismissal
of second appeal(s).
7. Heard learned counsel for the parties and perused the record.
8. Upon perusal of record it is clear that year of grant of patta to Gokul is
not available on record and even copy of patta or any other document has not
been placed on record either by Gokul or by Smt. Asha. As per submissions
made by learned counsel(s) for the appellant(s) Gokul was having right to
execute sale deed only after completion of 10 years from the date of grant of
patta. Undisputedly, sale deed dtd.19.10.1972 was executed by Gokul and
Hallu.
9. It is well settled that after due execution and registration of sale deed
title passes in favour of the Vendee. It is not the case of Gokul or Hallu that
they were not aware about execution of sale deed dtd.19.10.1972 by them in
favour of plaintiffs' father Rajaram Napit and his brother Premlal Napit. As to
why the defendants 2 and 4 (Gokul and Hallu) did not challenge the sale deed
dtd.19.10.1972, nothing is available on record. On the basis of sale deed
dtd.19.10.1972 the courts below have found the plaintiffs to be
owner/bhumiswami and in possession of the disputed land, which is a pure
finding of fact.
1 0 . So far as the argument of learned counsel for the appellant(s) in
respect of institution of previous suit and its dismissal is concerned, no
document in respect of filing of such suit and its dismissal has been placed on
record by defendants. As such it cannot be said that the plaintiffs are estopped
from filing the instant suit.
11. As has been said above, it is well settled that after due execution and
registration of sale deed, title passes in favour of vendee, therefore, Gukul and
Hallu after execution of sale deed dtd.19.10.1972, were not having any right to
execute second sale deed dtd.08.09.2005 in favour of the defendant 1-Smt.
Asha.
12. Perusal of judgment and decree passed by courts below shows that
upon due consideration of the material available on record, courts below have
concurrently found the plaintiffs to be bhumiswami and in possession of the
disputed land, therefore, it cannot be said that the suit for the relief of
declaration of title and for declaring the sale deed dtd.08.09.2005 is barred by
time.
13. In view of the aforesaid discussion and factual scenario the decision
in the case of Gopal and Ors. (supra) is distinguishable on facts and does not
help to the case of appellants(s), hence in my considered opinion, courts below
have not committed any illegality in passing the impugned judgment and decree.
1 4 . Resultantly, for want of any substantial question of law, both the
second appeals are dismissed.
15. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
ss
